Copyright Fundamentals for Genealogy
by Mike Goad
|This article is
available for free distribution and reprint as a public service from the
author. Please read conditions at the end of the article.
Since genealogical research inevitably involves copying of
information, questions involving copyright often crop up. When an answer
is given, it may be less than satisfactory. Sometimes the answer is wrong,
sometimes there is little or no explanation, and sometimes the answer isnít an
answer, but a policy statement. In other instances, the answer is right,
but it isnít what the questioner wanted to hear.
While copyright can be very complex and confusing, the
parts of copyright law that usually apply to genealogy are really pretty basic.
There are a few fundamentals that can help deal with just about any genealogy
Copyright means copy right
Literally, the term copyright means the right to make
copies of some product. By law, the right belongs to its creator. In
copyright law, the product thatís copyrighted is referred to as a ďworkĒ and the
creator of the work is its author. From that, we can say:
Making a copy of a work or a
portion of a work is its authorís copy right.
In the U.S., the right to make a copy of a protected work
is a constitutional, exclusive right of the workís author, except that
some limited copying is allowed by provisions of the copyright law. (see fair
Is it copyrighted?
If itís created today by the original expression of the
author and it can be viewed or copied, then it is protected under copyright.
The law says:
Copyright protection subsistsÖ in
original works of authorship fixed in any tangible medium of expression, now
known or later developed, from which they can be perceived, reproduced, or
otherwise communicated, either directly or with the aid of a machine or device.
For works created before today, there are a few basic
durations and conditions for determining copyright status:
- If an original work of authorship was created after 1977, itís copyrighted
and itís going to be for a very long time. The earliest that any work
created after that will lose its copyright will be about 2049 Ė thatís
assuming that the author died right after he authored the work.
- If it was created before 1923, there is no copyright on it any more, so
long as it was published. If it wasnít published, it may still be
protected by copyright.
- Works published before March 1, 1989 without proper copyright notice are
almost always in the public domain because, under the law that existed before
that, a proper copyright notice was required for copyright protection.
- Works published from 1923 to 1963 had to be renewed after an initial
copyright term for protection to continue. The U.S. Copyright Office
estimates that over 90% of works eligible for renewal were never renewed.
For other situations there are many good copyright duration
references online (including one on my web site).
Only original expression protected
All thatís protected under copyright is the authorís
original expression. The protected material must have been independently
created by the author with at least some minimal amount of creativity.
Anything in a work that isnít the authorís original expression isnít protected
by his copyright.
Facts canít be original expression
No one can claim originality in a fact. At best, a
person may discover a fact. If he discovers it and documents it, he has
not created it. He has only reported it. There is no originality.
Census takers, for instance, donít create the data that
result from their work. They write down the facts that they discover.
Census data, therefore, canít be copyrighted because itís not original.
Since facts canít be original expression, the copyright of
any work doesnít extend to the facts contained within it. This is a very
important fundamental concept in genealogy, since genealogy so very much
involves the pursuit, discovery, and collection of facts.
While copyright doesnít extend to facts, the facts may be
expressed in an original fashion. When this occurs, the original
expression used to convey the facts is protected, but the underlying facts are
Pre-existing material not protected
Any pre-existing material in a work thatís not the original
expression of the author isnít protected by the authorís copyright. Facts,
which exist before the work is created, canít be protected by copyright, as
previously discussed. Other examples of pre-existing material that might
be used in a work include the work of others, public domain material, and U.S.
The copyright status of already existing material doesnít
change when used in a new work. If an author uses material from the work
of someone else, the copyright for the material still belongs to the original
author. If something from the public domain is used, its copyright status
is that itís still in the public domain, available for anyone to use.
U.S. government developed material, by law, cannot be
copyrighted. However, material created by non-government authors and used
by the government is usually covered by the author's copyright. In either
case, though, use in a new work does not change the copyright status for U.S.
A compilation is a collection of pre-existing material.
It can be a collection of short stories, poems, or other narrative material.
In genealogy, compilations are usually some kind of collection of facts or
Many genealogy compilations arenít sufficiently original to
be protected by copyright. Since facts canít be copyrighted, to be
eligible for copyright protection, a factual compilation must have some amount
of originality in either the selection of the facts, the arrangement of the
facts or both. And, then, the only part of the compilation thatís
protected will be that which has originality.
Joe records the names, dates and
inscriptions of all of the headstones in the Farnham East Cemetery. He
arranges them in three tables. The first is alphabetical by last name, the
second chronological by date of death, and the third arranged by the
relationship of the location of the headstone to a large oak tree in the middle
of the cemetery. As well, in the third, he only includes the headstones of
people who died in even numbered years.
Of the three tables, the first two used all of the names
and dates and arranged them in standard formats, alphabetical and chronological.
If ďallĒ of an available quantity of facts is used, there is no originality of
selection. If a standard format is used for the arrangement and ordering
of facts, then there is no originality of arrangement.
Only in the third table is the selection and arrangement of
the material original enough to be protected by copyright. Defining and
describing the location of a headstone by relationship to something else applies
originality in the arrangement of the facts. Selecting only those that
died in even numbered years is a nonstandard way to select the information that
will be included.
However, the copyright protection for the compilation of
facts in the third table applies only to the selection and the arrangement of
the facts. To copy the selection and arrangement of the facts would be to
infringe upon the right of copy belonging to the author. However, the
facts that are included in the compilation arenít protected and may be used by
Industrious collection and sweat of the brow
Itís natural that someone who works very hard at
researching, collecting, and arranging facts into a compilation would want to
protect their efforts.
And they can.
So long as they donít make it available to others, so long
as they donít publish it.
But thatís the only way that it can be protected. Once itís
made available to others, such a work will have little or no copyright
protection in most instances.
Under copyright, the effort and work put into a project
means nothing. Copyright only protects an authorís ďoriginal expression.Ē
In the past, lower courts have made ďsweat of the browĒ and
ďindustrious collectionĒ rulings, where the work and effort that went into the
research, collecting and arranging counted in the copyright protection of a
work. However, such rulings were invariably overturned by higher courts.
The Supreme Court has reaffirmed and further defined the requirement for the
authorís original expression in a word being all thatís protected.
Fair use (and some application of what weíve read so far)
The constitutional purpose of copyright is to further the
progress of science and the useful arts, which today is understood to mean
scholarly growth. Since building upon the advances of others is often
necessary for further advancement in most endeavors, this purpose is in apparent
direct conflict to the rights of authors to control or even prevent the copying
of their original expression.
The principle of fair use, which allows limited copying
without consent, limits the conflict. Its limits intentionally
ill-defined, fair use is very applicable to scholarship and research, important
aspects of genealogy. Four factors are considered:
of the use, including non-profit educational use
the copyrighted work
the copying on the potential market for, or value of, the original work
Joe is doing research at the Mid
America Library in Independence, Missouri. He finds transcripts of
four 18th century wills on pages 21, 23, and 87 of a book of deeds
and wills from Virginia that is copyrighted 1979. He makes a copy of each
of the pages that has the information he needs. He subsequently posts the
text of each of the four wills online.
He also finds a little narrative
family history book that was published in 1955 on the family of his great,
great, great, granduncle. He copies the entire book and publishes it
In a third book, copyrighted in
1934, he finds several pages narrating the life of one his wifeís ancestors.
He copies the pages and posts small, significant portions from them online.
Which of the three examples was fair use?
Only the third.
In the first one, there is no potential for copyright
infringement. While the book is copyrighted 1979, at best the copyright
applies to the selection and arrangement of the information. If the book
is sequenced the same as the original will book or covered time period and all
of the documents available are included, then there is no originality.
A true transcript of a will is no more than a text copy
of an existing document. While knowledge and interpretation may be needed
to be able to read the old handwriting, there is no creative expression
involvedÖ and therefore no copyright involved.
In the second example, the book had no copyright date.
It was published in 1955 without proper copyright notice. Therefore, the
book is in the public domain and Joe can do anything with it he wants to.
If, however, the book included a proper copyright notice,
it might still have been under copyright protection if the author had renewed
the copyright. In that case, copying the book would probably not have been
a fair use and posting the entire work online definitely would not have been.
Joe copied several pages out of a book, in the third
example, that were applicable to his research. Assuming the book is still
the pages for personal research is a good example of fair use.
small significant portions of the narrative from them in his online web page
would also likely be fair use.
the entire narrative from the pages he copied would not be fair use and would
be copyright infringement.
the factual information from the narrative would not be fair use because there
is no copyright issue. Factual information abstracted from an authorís
original expression is not protected by copyright.
I could go on and on writing about copyright issues that
apply to genealogy. For example:
pedigree, descendant chart, GEDCOM, or any other standard genealogy form or
format that contains nothing but facts is not copyright protected. There
is no originality of selection or arrangement and facts canít be copyrighted.
Plagiarism and copyright are not the same. Plagiarism is the
failure to properly document the source of the information or material that
you use and is considered by many to be unethical.
When material you submitted is used by a commercial company in their
product, you retain the copyright for any of the material that is a product of
your original expression.
Copyright infringement and piracy of copyrighted material
are common on the internet. The online genealogy community is less exposed
to it than other interests. An understanding of some of the concepts
associated with copyright can be useful in both online and offline genealogy
Additional copyright information, in more depth and detail,
may be found on the authorís web site at http://www.pddoc.com/copyright
|This article is available for free
distribution and reprint as a public service from the author provided:
(1) it is not edited and these conditions appear on all copies, including
(2) a link is provided to http://www.pddoc.com/copyright if the
article is used in a web page on another site.
This article is also available in
pdf format for sharing.
Blog posted 1/10/2006